Intestacy Rules Do Not Work Well in the Modern World

Intestacy Rules Do Not Work Well in the Modern World

The number of problems and queries being thrown up by the intestacy rules demonstrates that they do not suit the requirements of today's Britain.

Figures released by the charity Citizens Advice show that nationally they received 1,522 queries relating to intestacy problems in 2011. By 2015, only 4 years later, that figure had more than doubled to 3,747.

Citizens Advice are often the first port of call for members of the public who have a legal query. Some of those queries can be resolved by them, but others need to be handled by a solicitor.

The rising figure is surprising since a YouGov survey has suggested that the proportion of adults making a Will has been rising by about 3% each year.

That means that although more people are making Wills, and there are therefore fewer intestacies, the number of problems being thrown up by intestacies is rising.

The reason for that is likely to be that the intestacy rules were originally drawn up in 1925 to match a different age, when people organised their lives differently. The heart of the rules is a provision that if someone dies and they are married, their spouse receives all of their estate, and that if they are married with children, the spouse receives the first slice (currently £250,000) and half of the rest, with the other half being shared among their children.

Family units have changed a lot since the rules were drawn up, with some couples choosing to marry while others live together without marrying. There are also situations where people have been married before and then move on to create new family units.

Someone who has been living with a partner may find that, if their partner dies without making a Will, the partner’s estate is then shared between the partner’s parents, brothers and sisters, and cousins. Hardly anyone makes a Will giving large parts of their estate to their parents or cousins, yet that is what the intestacy rules may in some circumstances provide.

Complications may arise where property is held between a boyfriend and girlfriend, and there may be two different approaches to the ownership of that property depending on exactly how it was held between them.

All this shows that the intestacy rules are not well set up to suit such complex arrangements. Although some changes were made to the intestacy rules in 2014, they were not substantial.

The mismatch between today’s families and the rules which apply in intestacies highlights the need to create a Will, and that is certainly the best way for anyone to ensure that their wishes are carried into effect.

The time may also be right for the lawmakers to take a fresh look at the intestacy rules. Root and branch reform may now be needed so that they continue to be of benefit in what is, for many families, a post-marriage world.